I. INTRODUCTION
In the immediate aftermath of apex court decisions, there is a tendency to over-estimate their significance. As time passes, and other cases in the same area come to be determined, the perceived importance of the earlier case often declines. Unless overruled or deliberately sidelined, any apex court decision will of course continue to exert control over the narrow points it decided, and influence over the broader issues it considered. Nevertheless, as the spotlight shifts away from it the case is increasingly viewed as one of a number of authorities that must be considered in the round, rather than as a standalone authority, to be viewed in isolation.[1] There are, however, two kinds of case that are exceptions to this tendency. The first are cases the importance of which is not immediately understood, but which comes later to be appreciated. Into this category I would place, for example, the decision of the House of Lords in Gorringe v Calderdale Metropolitan Borough Council.[2] And the second are cases the importance of which is immediately understood and does not thereafter abate. Into this category I would put, for example, the decisions of the House of Lords in Murphy v Brentwood District Council[3] and Alcock v Chief Constable of South Yorkshire Police.[4]
It will be interesting to see in twenty years’ time into which category the decision of the United Kingdom Supreme Court in Fearn v Board of Trustees of the Tate Gallery[5] falls. My hunch is that it will be one of those decisions that follows the usual pattern of gradually declining importance. In such instances, the more particular or concrete aspects of the ruling tend to retain their significance longer than the more general aspects of the reasoning, particularly where (as in the case of Fearn) the latter did not attract support from all the judges sitting in the case. This is just as it should be. Good appellate judges are well attuned to arriving at the ‘right’ result, by which I mean a result that is both just and consonant with principle. However, at least in fields that lie beyond the particular expertise of the judges in question, the reasoning that underlies the outcome is often somewhat suspect, and can be unduly influenced by submissions of counsel and/or the writings of an academic or two. It follows that while commentators should be wary of concluding that the decision of a court composed of able appellate judges was wrong, they should have no compunction about questioning the underlying reasoning, especially where it does not itself have a firm grounding in earlier authority.
With these observations in mind, the purpose of this article is to assess the likely significance of the Fearn decision for the English law of nuisance.[6] At first blush, it looks to be a very important case indeed. The litigation in Fearn raised a host of interesting questions concerning nuisance law, some of which (rather surprisingly) had not previously been the subject of consideration by the House of Lords/Supreme Court. Furthermore, the facts of the case were truly memorable----had they been set as an exam question, the setter would surely have been hailed as a genius----and, for this and other reasons, the decision garnered widespread media attention in the UK and beyond.[7] Finally, the two judgments in the case are both long and detailed (133 and 150 paragraphs respectively), with close consideration being given to a large number of earlier authorities from many jurisdictions (67 cases), as well as to a wide range of academic literature.
The contrast with the subsequent Supreme Court case of Jalla v Shell International Trading and Shipping Co Ltd[8] brings home the apparent importance of Fearn. The point at issue in Jalla was narrow, and while Lord Burrows’s judgment is insightful, and helpfully clarifies the meaning of a ‘continuing’ nuisance, it is relatively short (50 paragraphs) and draws on a limited range of authorities (20 cases), all from the UK. Jalla is not----and never could have been----a landmark case. By contrast, it has been said that Fearn has ‘transformed the tort of private nuisance’[9] and that it should be inducted forthwith into the tort law ‘canon’.[10]
There is no doubt that Fearn is an immensely rich decision which merits close attention. Although long, it is worth reading more than once, as each reading reveals new insights. Nevertheless, I am sceptical as to its supposed landmark status. Ultimately the points that actually fell for decision were relatively narrow ones, and I suspect that some of the more esoteric of the general observations in the majority judgment of Lord Leggatt will be too difficult to reconcile with the existing understanding of private nuisance law to have much long-term traction. In what follows I will seek to make good on these claims. Before I turn to that task, however, a few preliminary points should be made.
The first is that, in his judgment, Lord Leggatt made a rather strange claim about the motivations of the courts below in dismissing the residents’ actions. His lordship said that he suspected that what lay behind the rejection of the claim was ‘a reluctance to decide that the private rights of a few wealthy property owners should prevent the general public from enjoying an unrestricted view of London and a major national museum from providing public access to such a view’.[11] Having closely read both judgments below, it is impossible to detect in them any obvious ground for this suspicion. In any case, my own suspicion having watched the hearings and read the majority judgment is that, perhaps as a result of this perception, Lord Leggatt went into the hearings in the case with a clear view as to the appropriate outcome, and that as a result he sided with the residents on just about every one of the issues raised, even though a more even-handed approach could still have yielded the same result.
The second point is that it seems as if, at some stage, it was intended that Lord Sales’s minority judgment would be the majority judgment. The judgment is longer than Lord Leggatt’s, and the description of the facts and the decisions below is more detailed. The Supreme Court took a very long time to hand down judgment in Fearn (almost 14 months) and it has been suggested that the reason for the delay was that one or more of the justices wavered as to their view as to the appropriate outcome. Though this can only be speculation, the decision was a fine one (a bare majority of three to two), and of the nine judges who heard the case six favoured the Tate and only three the residents. These matters should be borne in mind when reading the judgments and assessing their significance.
And finally, the way in which Lord Leggatt structured his judgment gives rise to some risk of confusion, because it meant that he returned more than once to the same issues. It seems to me that, when interpreting the judgment, priority should be given to the section entitled ‘Core Principles of Private Nuisance’, where his lordship sets out a series of clear and univocal propositions about the law in this field. Although much can be gleaned from the later sections of Lord Leggatt’s judgment in which he applies these principles to the facts of the case and subjects the two judgments below to sustained critique, to the extent that there is any doubt as to the import of the majority’s analysis of particular issues, the discussion in the ‘Core Principles’ section of the judgment should probably be accorded greater weight than discussion of the same issues later in the judgment.
II. FUNDAMENTALS
As someone who still remembers the mire into which the English law of private nuisance descended in the 1990s before Hunter v Canary Wharf Ltd[12] was decided, there is much to welcome in Fearn, some of which builds on the helpful analysis of the tort in the English Court of Appeal in Williams v Network Rail Infrastructure.[13] In particular, the judgment of Lord Leggatt is noteworthy for its resolute adherence to the conception of private nuisance as a property tort, and emblematic of the increasing acceptance by the judiciary of the explanatory force of this analysis. A good example is the straightforward explanation which the property tort analysis provides for the principle that the gravity of the interference in a nuisance case is to be judged objectively,[14] so that any abnormal sensitivities of the claimant or their use of the property are to be disregarded. Taken together with the seminal decision in Hunter, Williams and Fearn have placed the English law of private nuisance on a solid doctrinal foundation, which I think is unlikely ever to be disturbed.
Three other aspects of the decision in Fearn are particularly welcome as far as the fundamentals of private nuisance are concerned. The first is the Supreme Court’s express approval of what I have elsewhere called the ‘orthodox view’ of private nuisance as centrally concerned with protecting the use and enjoyment of land.[15] In Lord Leggatt’s words, it ‘follows from the nature of the tort of private nuisance that the harm from which the law protects a claimant is diminution in the utility and amenity value of the claimant’s land’.[16]
The second is the majority’s reaffirmation of the irrelevance of the fact that the claimant ‘came to the nuisance’, either because they acquired their property knowing that it was affected by a nuisance, or because they adapted their property in such a way that an activity of the defendant which was not previously a nuisance became one. In particular, it is pleasing that Lord Leggatt explained so clearly the logic of the second aspect of the coming to the nuisance principle, which had previously been questioned by Lord Neuberger in Lawrence v Fen Tigers.[17]
And the third welcome aspect of Fearn in this respect is the recognition that the Human Rights Act 1998 (‘HRA 1998’) is unlikely to add much to the common law analysis of private nuisance. The almost contemptuous response of the Supreme Court to the argument that the HRA 1998 might affect the private law analysis in the case[18] must surely be the final nail in the coffin of the idea that was so popular in academic circles in the early 2000s that the ‘horizontal effect’ of the HRA 1998 was going to transform vast swathes of English private law. According to Lord Leggatt, the claimants’ reliance on the European Convention on Human Rights was ‘an unnecessary complication and distraction’. There was ‘no need or justification for invoking human rights law’ when the common law had already developed ‘tried and tested principles’ to determine when liability arose.[19] It follows that, while the HRA 1998 might still be considered to have implications for certain discrete nuisance doctrines, such as the defence of statutory authority,[20] any such effect is likely to be limited, and that the HRA 1998 will not be allowed to undermine fundamental nuisance principles, such as the limitation of the right to sue to those with a proprietary interest in the affected land.[21]
III. THE SCOPE OF PRIVATE NUISANCE
There is more novelty in the Supreme Court’s treatment of the scope of private nuisance. Before Fearn, it was possible to argue that there were certain types of interference with the use and enjoyment of land that were not capable of grounding a nuisance claim, such as blocking a view or television reception, appropriating water percolating in undefined channels over or under one’s own land, and interfering with the privacy of those on the claimant’s land.[22] Although in all these cases there was interference with the use and enjoyment of the claimant’s land----so that the interference could in principle amount to a nuisance----it seemed that the law had decided that in such cases it was preferable to rule out nuisance liability altogether, rather than allowing it to be determined on a case-by-case basis by the application of the doctrine of undue interference.
This argument cannot, however, survive Fearn, where Lord Leggatt states that ‘there is no conceptual or a priori limit to what can constitute a nuisance’, with the result that there is ‘no legal reason’ why anything that substantially interferes with the ordinary use and enjoyment of land cannot be actionable in private nuisance.[23] Consistently with this analysis, later on in his judgment Lord Leggatt appears to dismiss the suggestion (put forward by counsel for the Tate) that there are ‘a small number of specific types of interference with the use and enjoyment of land which are excluded from the scope of the law of private nuisance as a matter of legal precedent and policy’.[24] It followed that, in principle, there was no reason why visual intrusion of the kind at issue in the case could not amount to a private nuisance.
In the discussion of the ambit of private nuisance that follows I start with the clear rejection in Fearn of two ‘physicalist heresies’[25] concerning the legitimate scope of the nuisance action. I then proceed to consider how Lord Leggatt reconciles his claim that there is ‘no legal reason’ why anything that substantially interferes with the ordinary use and enjoyment of land cannot be actionable in private nuisance with earlier authorities which seemed to suggest otherwise. And to finish, I consider whether it was wise of the Supreme Court to open up the possibility of nuisance claims for visual intrusion in particular.
A. Rejection of the ‘Physicalist Heresy(ies)’
One aspect of Fearn that is particularly welcome is the Supreme Court’s forthright rejection of the misguided notion that a private nuisance must amount to a physical invasion of the claimant’s land (or, which amounts to much the same thing, to some sort of ‘emanation’ from the defendant’s). According to Lord Leggatt, ‘there is no requirement that the interference must be caused by a physical invasion and … there are many cases which do not fit this model’.[26] Lord Sales also rejected any notion that the tort was limited to physical invasions/emanations.[27] As Victoria Ball points out, this has clear implications for nuisance theory, since it follows that:
Nuisance is not a mini-trespass action … the right protected is not the right of exclusion or possession. Instead the ‘right’ … protected through nuisance is the right … to use and enjoyment of land or usability of land. [28]
It is worth noting here that a second physicalist heresy recently surfaced in discussion of the Fearn decision on the Obligations Discussion Group email list.[29] Although the scholars in question accept that a nuisance need not involve a boundary crossing, they consider that the law of private nuisance should be limited to conduct that has some impact on the physical condition of the claimant’s land, and that, for this reason, the Supreme Court in Fearn ought not to have extended the scope of the tort to cases of visual intrusion, where there is no such impact. This supposed limitation on the scope of nuisance has never, as far as I can tell, been articulated in any published work, although the possibility of such a limit was adverted to in an essay by Roderick Bagshaw.[30] It is in any case difficult to see any rationale for such a limitation, which seems to be based on a somewhat crude conception of land as a physical space as opposed to a legal one,[31] as well as a contestable notion of the physical (in what sense, for example, does noise affect the physical condition of the land where it is heard?).[32] Besides, the supposed limitation is impossible to square with the positive law, since it is inconsistent not only with Fearn but also with a range of other situations in which the courts have imposed liability for nuisance, including cases involving the blocking of access to the claimant’s land,[33] the so-called ‘affront’ cases,[34] and a case where a dangerous wall on the boundary threatened to collapse onto the claimant’s land, thereby rendering part of it unusable.[35]
B. Explaining the ‘No Rights’ Cases
Since as a matter of positive law it is not in doubt that there are in fact certain kinds of interference with the use and enjoyment of land that are not capable of grounding an action in nuisance, such as blocking television reception by a building,[36] and abstracting percolating water so as to dry up a spring,[37] the question arises as to how these are to be reconciled with Fearn. In part, at least, the Fearn majority find the answer in a common law liberty (in Hohfeldian terms a ‘privilege’[38]) to build on one’s own land. In the words of Lord Leggatt, ‘interference with the use of the claimant’s land caused by the mere presence of a building on the defendant’s land’ cannot give rise to a claim in private nuisance.[39] This liberty to build accounts, it seems, for the ‘no rights’ in respect of television reception and views, and also for the rule that there is no right to the free and uninterrupted passage of air over neighbouring land.[40]
This notion of a common law liberty to build has been adverted to by the courts previously,[41] but its significance is much greater after Fearn, where it is used to explain earlier decisions that could also have been justified by reference to a ‘no rights’ analysis focused not on the cause of the interference, but on the nature of the interference itself. There are, however, a couple of problems with this explanation for the ‘no rights’ cases, and there is also a possibility that Lord Leggatt has (whether deliberately or not) opened up the possibility of new types of claim which would not previously have been countenanced in English law. One difficulty with the explanation is that the common law liberty to build is not absolute. Even if we set aside contractual restrictions via restrictive covenants and the like, any such liberty is (as Lord Leggatt admits) subject to rights to light and to the free passage of air through a defined aperture that neighbouring properties may have acquired over the property on which the owner wishes to build. Furthermore, Lord Leggatt accepts the possibility that there could be ‘extreme cases where the design or construction of a building’ is so unusual or unexpected that it might give rise to nuisance liability,[42] citing as a possible example Bank of New Zealand v Greenwood,[43] where it was held that a glass roof which threw a dazzling glare onto nearby buildings could be a nuisance.[44]
A second point to note about the liberty to build explanation for the ‘no rights’ cases is that it does not encompass the decision in Bradford Corpn v Pickles[45] that the appropriation of percolating water cannot amount to a nuisance, even if done with malicious intent. Although the significance of this common law rule has been emasculated by statutory intervention,[46] it remains unclear after Fearn whether Pickles is still good law, and, if it is, how it can be reconciled with Lord Leggatt’s claim that anything which substantially interferes with the use and enjoyment of the claimant’s land can in principle be a nuisance.[47]
Although in itself a liberty to build (subject to acquired rights) is perfectly plausible, Lord Leggatt’s attempts to link it to issues that arise later in the nuisance enquiry are less convincing. His lordship explains the liberty as an example of the more general principle, to which we will come shortly, that a defendant’s common and ordinary use of their land cannot be a nuisance.[48] However, for this explanation to work the ‘common and ordinary use’ principle has to be applied at such a high level of abstraction that its own plausibility is completely undermined. We can presumably assume, for example, that Lord Leggatt does not think that the construction of a nuclear power plant is a ‘common and ordinary use’ of land. But in that case, for the liberty to build----which would cover such construction----to constitute an application of the ‘common and ordinary use’ principle the ‘use’ has to be framed as ‘building on one’s land’ (which is indeed how Lord Leggatt frames it). However the common and ordinary use principle surely presupposes a more fine-grained approach to the characterisation of the defendant’s ‘use’. Otherwise a defendant operating a highly unusual and noxious business on their land could (by analogy) say that they are simply using their land ‘to operate a business’, which is an ordinary use, and hence that they cannot be liable in nuisance provided they act with due consideration for their neighbours. Another difficulty with this move is that the ‘defence’ of common and ordinary use applies only if the defendant acts reasonably in exercising the use,[49] but it had hitherto been thought that the English ‘no rights’ cases had no such limitation, so that, for example, the construction of a fence solely in order to block a neighbour’s view was not a nuisance.[50]
C. Visual Intrusion
The central legal issue raised by the facts of Fearn was whether the mere fact that persons on the claimant’s land could be observed by others beyond the boundaries of that property was capable of amounting to a private nuisance. At first instance, Mann J held that in principle it was, but that in the instant case the visual intrusion did not rise to the required level. By contrast, the Court of Appeal considered that no such form of nuisance existed. In the Supreme Court, all five justices accepted that such a claim could lie in nuisance, although the majority and minority disagreed as to whether on the facts the intrusion was actionable.
Once we reject the two physicalist heresies, there is no reason why visual intrusion cannot amount to a private nuisance, provided it constitutes an interference with the abstract usability of the claimant’s land and therefore falls within the definitional limits of the private nuisance tort (a requirement surely met in Fearn, where the visual intrusion had clearly affected the claimants’ ability to use their flats as they would have wished). For me, whether visual intrusion should have been recognised as a form of actionable nuisance boils down to a practical question, namely whether there are enough cases in which visual intrusion is intolerable (and in which no other remedy exists[51]) to justify opening the door to a new category of nuisance claim that may prove difficult for the courts to keep under control. Put simply, the argument against visual intrusion as nuisance (which I put in a case note in which I expressed agreement with this aspect of the Court of Appeal’s decision in Fearn[52]) is that there are likely to be very few cases in which such liability is necessary to provide adequate protection to the use and enjoyment of land, and yet the possibility of such a claim might generate extensive litigation. Hence, the argument goes, it might be better for the courts to rule out the possibility of such liability altogether, rather than determining such claims on a case-by-case basis by applying a fact-sensitive test of undue interference.
A particular reason for caution in the case of visual intrusion is that the concept is so subjective.[53] While there are of course also subjective elements to types of amenity interference that are well-established, such as noise and odours, these seem to me to be exacerbated in visual intrusion cases, where there is no way of providing an objective measure of the extent of the interference equivalent to, say, decibels in the case of noise,[54] and where it may not even be possible to tell whether the intrusion is happening in the first place.[55] Furthermore, although reactions to noise and smells vary, they are probably more consistent across persons generally than reactions to being seen or looked at in one’s own home.[56] As a result, and as the history of the Fearn litigation shows, it may be particularly difficult in visual intrusion cases to draw a line between interference that is acceptable and interference that is not.
Having read the judgments in Fearn I now incline to the view that the Supreme Court was right to hold that in extreme cases visual intrusion into domestic property[57] should be capable of grounding liability in nuisance, particularly bearing in mind the routine carrying of camera phones and the ready availability of CCTV and similar technologies. And there is of course some force in Lord Leggatt’s observation that ‘the law would be utterly ineffectual if the possibility of hard cases were treated as a reason to deny relief in clear cases’.[58] At the same time, however, the difficulty of line-drawing does seem to be a valid reason for not treating a particular form of interference with the use and enjoyment of land as a potential nuisance in marginal cases, at least where the impact of the interference is relatively trivial (as in the ‘no right to a view’ rule, for example). And there are undoubtedly risks in opening the door to litigation about visual intrusion, though whether they materialise will depend on whether the courts treat Fearn as an essentially one-off decision based on its somewhat extraordinary facts,[59] or whether visual intrusion now becomes a significant category of private nuisance case going forward.
Finally, there is an obvious connection between the decision to allow claims for visual intrusion and some other aspects of the majority reasoning in Fearn, to which I will come shortly. For example, it seems reasonably clear that Lord Leggatt latched onto the supposed principle that the common and ordinary use of land cannot give rise to liability in nuisance in the hope that it would prevent visual intrusion cases from getting out of hand----which indeed (for all the problems associated with that principle) it may well do.
IV. UNDUE INTERFERENCE
The outcome of most nuisance cases turns on the requirement that the interference be (according to taste) ‘substantial’, ‘unreasonable’ or ‘undue’. I will deal with this question under the label of ‘undue interference’, as the Supreme Court itself did in the Jalla case. Most of what was said about this requirement in Fearn was entirely orthodox, and these observations will be dealt with first. I will then proceed to consider two more challenging aspects of the majority’s reasoning, relating respectively to the limits of the objective assessment (or ‘abnormal sensitivity’) principle, and the relevance of possible self-help measures on the part of the claimant.
A. General
Three aspects of the majority’s treatment of the undue interference issue are in my view to be welcomed. The first is the majority’s forthright rejection of an approach to that question based on some kind of open-ended enquiry into whether the interference is ‘unreasonable’. On the contrary, as Lord Leggatt says, there are clearly established principles which govern whether interference with the use and enjoyment of land is ‘undue’, and although the application of these principles requires an exercise of judgment ‘they provide clear standards rooted in values of reciprocity and equal justice’.[60] By contrast, Lord Sales seemed to put more store by an all-things-considered reasonableness enquiry, arguing that the ‘unifying principle underlying the tort is reasonableness between neighbours’.[61]
A second aspect of the majority judgment which is broadly to be welcomed is the unequivocal holding that any public interest in the continuation of the defendant’s activity is to be taken into account only at the remedies stage of the nuisance enquiry,[62] a conclusion underpinned by a very clearly expressed property rights analysis. However, Lord Leggatt perhaps goes too far in saying that public interest considerations are of no relevance at the liability stage.[63] Certainly the courts have in the past factored these into the undue interference enquiry, albeit merely as one consideration among many,[64] and it can be argued that the level of interference which the claimant can reasonably be expected to tolerate[65] could be affected by the public interest in the continuation of the defendant’s activity. More forbearance can be expected of us when it comes to socially beneficial activities than when the intrusive activity has no such benefit.[66]
Finally, another welcome aspect of the majority’s analysis is the clear reaffirmation that the reasonableness of the defendant’s activity is not a defence to a nuisance claim,[67] even if this is somewhat undermined by their insistence that reasonable care is in effect such a defence where the defendant’s use of their own land is ‘common and ordinary’ (a point to which I will turn shortly).
B. The Limits of the Objective Principle
One of the issues in Fearn was whether the principle that the gravity of the interference with the claimant’s land is assessed objectively extends to the design and construction of the buildings on the land. (This was important on the facts because the visual intrusion from the Tate’s viewing gallery was exacerbated by the floor-to-ceiling windows in the claimants’ apartments, and by the incorporation into the general living accommodation of the so-called ‘winter gardens’, a form of indoor balcony.)
It is not entirely easy to understand the majority’s reasoning on this point. Lord Leggatt was apparently dismissive of any such extension, arguing that it was both unprincipled and unworkable.[68] The rationale of the objective test was that the injury is, ‘strictly speaking to the utility and amenity value of the claimant’s land’[69] and that injury is not any more serious just because those occupying the land (or their uses) are abnormally sensitive.[70] But, he argued, it is the utility of the actual land, including the buildings constructed on it, for which the law of nuisance provides protection. However, this seems to me to beg the question. It does not follow from the fact that the gist of the wrong is the diminution in the utility of the land that every aspect of the current configuration of ‘the land’ (in its legal sense) should be accorded equal protection. After all, the legal conception of land extends beyond the land itself and the buildings on it to encompass any fixtures attached to the land. Does Lord Leggatt really think that, say, ultra-sensitive plants growing on the land are not caught by the objective assessment principle? And if not, why are buildings to be treated any differently?[71] Nor is it clear why the extension of the objective assessment principle to abnormally sensitive buildings would be any more ‘unworkable’ than its existing application to sensitive occupants and uses.[72]
The difficulties with Lord Leggatt’s analysis of this issue are brought out by his saying that he would not wish to rule out the possibility that there could be ‘extreme’ cases where the physical make-up of the buildings on the claimant’s land might be relevant, such as a tumbledown house[73] (or perhaps Lord Reed’s example in argument of a house without foundations).[74] But surely either the objective principle extends to the physical make-up of the buildings on the claimant’s land or it does not? And if the answer is that it does, but that the design features of the residents’ apartments were not sufficiently unusual to engage the principle, then why not just say that, instead of claiming that any such extension was unprincipled, but that there might nevertheless be cases where it would be necessary?
At a substantive level, this limitation on the objective principle makes little sense. The central normative argument in favour of that principle is that, in its absence, the abnormal sensitivity of the claimant or their use would have the effect of curtailing the freedom of action of their neighbours. And this argument carries equal weight when it comes to the physical make-up of the claimant’s property. Suppose, for example, that my neighbour happens to have constructed a building on his land in such a way as to amplify external noise. He is of course free to do this if he wishes, but why should the fact that he has chosen to do so mean that I must now conduct my own activity more quietly than if he had put up a normal building?
C. Self-Help
Finally, we come to the majority’s rejecting as irrelevant the possibility that the residents could have reduced the severity of the visual intrusion in Fearn by using screening mechanisms such as blinds, net curtains and privacy film. Here I stand by the position that I took in my note on the Court of Appeal decision, namely that there is no reason not to factor in the possibility of self-help measures of this kind. The potential relevance of self-help seems to me to be primarily a matter of common sense. Suppose, for example, that a product was invented which, when applied to windows, blocked the view in one direction but not the other.[75] Would it not be rather strange to then decide a case such as Fearn without at least taking this into account? The relevance of self-help also follows, in my view, from the principle of the objective assessment of the gravity of the interference, since by failing to take reasonable self-protection measures the claimant renders themselves abnormally sensitive to the interference.
It is important to emphasise that the argument from self-help is merely that in assessing what is wrongful the court should take into account any measures which an occupier could reasonably be expected to take to minimise the effect of the interference on their use of their property.[76] It follows that Lord Leggatt fell into error when he characterised this argument as being that the possibility of self-help was a ‘defence’ to a nuisance claim,[77] and that he again begged the question he was supposed to be answering when he suggested that acceptance of the argument would require the claimant to take steps to protect themselves against the consequences of the defendant’s wrong.[78] Perhaps predictably, this aspect of the majority’s reasoning was eviscerated by Lord Sales in dissent,[79] and has left commentators unimpressed.[80]
V. COMMON AND ORDINARY USE
Whatever the other flaws in Lord Leggatt’s analysis, however, by far the most problematic aspect of the majority judgment is the unwarranted focus on the ordinariness of the claimant’s and (especially) the defendant’s use of their land. According to his lordship, ‘the priority accorded to the general and ordinary use of land over more particular and uncommon uses’ is ‘fundamental to the common law of private nuisance’.[81] It seems to me that Lord Leggatt probably latched on to this idea in order to justify allowing recovery on the facts without opening the door to large numbers of visual intrusion claims between neighbours living in accommodation that affords them views into the living spaces of each other’s homes. Unfortunately, however, Lord Leggatt’s emphasis on ordinariness of use is contrary to both principle and authority. And in seeking to solve one problem, Lord Leggatt has merely served to generate another, in that going forward it seems inevitable that nuisance litigation will be complicated by pointless arguments about the ordinariness of the parties’ uses, even if the results in the cases will probably be the same.
In the discussion of the common and ordinary question that follows, I will look first at the relevance of the ordinariness of the claimant’s use, before turning to the more significant issue of the ordinariness of the defendant’s use.
A. Ordinariness of the Claimant’s Use
Happily, the emphasis which Lord Leggatt put on the ordinariness of the claimant’s use of their land is consistent with the previous understanding of the law. This is because the ordinariness of the claimant’s use is already factored into the undue interference enquiry via the principle that the gravity of the interference is assessed objectively, a principle which requires the court to ignore any abnormal sensitivity of the claimant or their use. Hence the cases that Lord Leggatt cited for the claimant-sided aspect of his ordinary use idea were simply examples of the operation of that principle, such as Robinson v Kilvert[82] and Eastern and South African Telegraph Co v Cape Town Tramways Co.[83] In theory, the law could afford greater significance to the ordinariness of the claimant’s use than this, by making it a condition of claiming that the interference is with an ordinary use. However, that is clearly not the law, since there are countless examples of interferences with non-ordinary uses being held to be actionable.[84] Furthermore, when Lord Leggatt’s judgment is read as a whole it does not seem that he was suggesting such an absurd rule, even if his language is at times a little loose, as when he incorrectly states that ‘an occupier cannot complain if the use interfered with is not an ordinary use’.[85]
It is worth pausing a moment to see why it is that that statement is not only manifestly false as a statement of the positive law, but also wrong as a matter of principle. Just as we shall see that the focus in Fearn on the defendant’s use is misguided, so here is the focus on the claimant’s, since the truth is that what the claimant is actually doing on their land is largely irrelevant to the nuisance enquiry. The problem is that, like Allan Beever,[86] Lord Leggatt seems to me to misconceive what it is that private nuisance protects. For although in practice nuisance of course protects particular uses of land, the cause of action is not organised in this way. Instead, the tort is organised around a more abstract notion of the land’s capacity to be used and enjoyed for a wide range of ‘normal’ uses[87]----‘in the various ways in which property is commonly and lawfully used’, as Bramwell LJ put it[88]----with the particular use in fact affected only coming into the foreground where it is argued that it is abnormal, and so ought to be discounted when assessing the gravity of the interference with the capacity of the land for (normal) use and enjoyment.[89] That nuisance works in this way is clear from judicial encapsulations of the objective assessment principle, which refer to interference with ‘the ordinary use and enjoyment’ of the claimant’s property[90] (and not ‘an ordinary use’), and also from the test of undue interference used in right to light cases, which entitles the claimant to ‘such access of light as will leave his premises adequately lit for all ordinary purposes for which they may reasonably be expected to be used’.[91]
One final point about the ordinariness of the claimant’s use is that presumably this must be assessed----as it seems the ordinariness of the defendant’s use is[92]----in the light of the nature of the relevant locality.[93] However, that seems also to be true of the objective assessment/abnormal sensitivity principle,[94] in which case this is not in itself an indication that the emphasis in Fearn on the ordinariness of the claimant’s use is anything more than a reiteration of that principle.
B. Ordinariness of the Defendant’s Use: Introduction
Although the significance which the Fearn majority attach to the ordinariness of the claimant’s use can be reconciled with nuisance orthodoxy, unfortunately the same cannot be said of their treatment of the ordinariness of the defendant’s use. On this, the majority are apparently unequivocal. According to Lord Leggatt:
[E]ven where the defendant’s activity substantially interferes with the ordinary use and enjoyment of the claimant’s land, it will not give rise to liability if the activity is itself no more than an ordinary use of the defendant’s own land. [95]
And the only qualification on this rule is that the defendant’s activity must be ‘conveniently done’, meaning ‘done with proper consideration for the interests of neighbouring occupiers’.[96] It followed that the visual intrusion in Fearn would not have been actionable if it had resulted from the use of nearby property ‘in a common and ordinary way----for example, as housing or offices’.[97] By contrast, the Tate’s use (a viewing gallery frequented by thousands of people each day) could not ‘by any stretch of the imagination be regarded as a common or ordinary use of land’[98] and so the common and ordinary use principle did not shield it from liability.
C. Ordinariness of the Defendant’s Use: Where Does It Fit?
An initial conundrum to which the rule that the common and ordinary use of the defendant’s property cannot generate liability gives rise is how the rule fits into the nuisance analysis. One possibility is that the ordinariness of the defendant’s use completely supplants the undue interference enquiry,[99] such that if there is ‘substantial interference’ caused by an ordinary use (a prerequisite which Lord Leggatt accepts) there cannot be liability, and, conversely, that if there is substantial interference caused by a use which is not ordinary there will be liability. Much here depends on what is meant by ‘substantial interference’. If that concept has real teeth, so as to amount in effect to a rebranding of the ‘undue interference’ enquiry, then that does indeed seem to be the correct approach after Fearn. However, if (as Lord Leggatt’s analysis seems to me to suggest) the substantial interference requirement is really just a de minimis concept, then a more nuanced analysis is required, since for various reasons an approach according to which the actionability of any interference that is not de minimis turns entirely on the ordinariness of the defendant’s use simply will not work.[100]
One reason why such an approach will not work is that it would be almost entirely defendant-sided, and yet for good reasons the actionability of an interference has hitherto been a primarily claimant-sided enquiry.[101] Since nuisance protects the usability of land, it seems to follow that the test of actionability should be mainly focused on the degree to which the defendant’s activity impinges on the land’s usability,[102] which is suggestive of a primarily claimant-sided test, such as whether the claimant can reasonably be expected to put up with the interference,[103] albeit one informed by defendant-sided considerations, such as the utility of the defendant’s activity. And although any such test is of course qualified by the focus in Fearn on the ordinariness of the defendant’s use, it seems unlikely that it is completely replaced by it, since it would follow, for example, that the volume of an alleged noise nuisance would be irrelevant to its actionability, surely a self-evidently absurd proposition.
This takes us to the second reason why ‘common and ordinary use’ cannot realistically supplant the ‘undue interference’ requirement, which is that the latter is and must be a multi-faceted analysis, whereby the courts take account of a wide range of fact-sensitive considerations, such as, in a noise case, not only the volume, but also the character of the noise, its duration, its timing, and the motive of the defendant for making it. This point was well made by Pollock CB in Bamford v Turnley:
The question [of the actionability of an alleged nuisance] so entirely depends on the surrounding circumstances,----the place where, the time when, the alleged nuisance, what, the mode of committing it, how, and the duration of it, whether temporary or permanent, occasional or continual,----as to make it impossible to lay down any rule of law applicable to every case … it must at all times be a question of fact with reference to all the circumstances of the case.[104]
It follows that, as Lord Sales pointed out in Fearn, questions of common and ordinary usage of land are simply not ‘capable in themselves of providing a solution across the whole range of cases with which the law of nuisance has to deal’.[105]
That this is so can be demonstrated by instances where an extraordinary use interferes with another extraordinary use, such as Hollywood Silver Fox Farm Ltd v Emmett.[106] As has been noted,[107] in cases of this kind considerations other than the ordinariness of the rival uses must be factored into the analysis, as otherwise it results in a dead heat. The impossibility of relying on considerations of common and ordinary usage alone is also shown by the fact that some nuisance cases do not involve the defendant’s use of their land in the first place, as in Jalla,[108] where the oil pollution that constituted the alleged nuisance came from the sea.[109] It is therefore no surprise that in that very case, decided after Fearn, Lord Burrows seemed to think that an overarching test of ‘undue interference’ was alive and well, and not that it had been supplanted by considerations of common and ordinary usage.[110]
But if the ordinariness of the defendant’s use has not supplanted the undue interference enquiry, then where does it fit in? It is tempting to argue that it is merely one consideration among many that inform the undue interference analysis, but that will not wash, because Lord Leggatt consistently makes it clear that interference caused by a common and ordinary use simply cannot be a nuisance. That suggests to me that the best way of dealing with the ordinariness of the defendant’s use, and in particular of reconciling it with other aspects of the nuisance cause of action, is to treat it as a new defence to a nuisance claim. This analysis is consistent with the approach of Lord Sales in his dissenting judgment, where he described the common and ordinary use of the defendant’s land as a ‘defence’,[111] and also with the language used in the two principal authorities on which Lord Leggatt relied when emphasising the significance of the ordinariness of the defendant’s use, namely the judgment of Bramwell B in Bamford v Turnley[112] and the decision of the House of Lords in Southwark London Borough Council v Tanner.[113] Treating common and ordinary use as a defence also chimes with the fact that such a use shields the defendant from liability only if the use is ‘conveniently done’, since a similar requirement operates as a qualification on other nuisance defences, such as statutory authority.[114] Furthermore, such treatment would also suggest that the defendant bears the burden (as surely they should) of establishing both that the use is common and ordinary, and that they acted with proper consideration.[115]
There is, however, one difficulty with the view that common and ordinary use is a defence, which is that it would follow that there would be no liability even where such a use resulted in physical damage to the claimant’s land. And although this is perhaps implied by Lord Leggatt’s judgment, this is difficult to reconcile with his citation as an example of the common and ordinary use ‘defence’ the rule that temporary construction work is not actionable in nuisance if reasonable care is taken to minimise the resultant disruption, since that rule does not apply in cases of physical damage.[116] This perhaps points to a slightly different conclusion as to the precise impact of the defendant’s use being common and ordinary, which is not that it constitutes a defence to liability, but that, in amenity nuisance cases, it automatically determines the ‘undue interference’ enquiry in the defendant’s favour.[117]
D. Ordinariness of the Defendant’s Use: Absence of Authority
One of the most curious aspects of the Fearn decision is the fact that there is so little authority for the majority’s elevation of the ordinariness of the defendant’s use into a cornerstone of nuisance law. Lord Leggatt relied heavily on a passage of Bramwell B’s judgment in Bamford v Turnley,[118] which he claimed had been ‘repeatedly cited and regarded as a classic statement of the relevant legal principles’.[119] In the most pertinent part of that passage, Bramwell B said that:
[T]hose acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action.[120]
The first point to note about Lord Leggatt’s reliance on this passage is that, while Bramwell B referred to acts ‘necessary for’ the common and ordinary use and occupation of land, Lord Leggatt’s formulation generally dispenses with this qualification,[121] so that the question becomes whether the use causing the interference is an ordinary use, as opposed to whether it is necessary for ordinary use.[122] Four further points should be made about the relevance of this passage to the modern law. The first is that Bramwell B himself assumed that in such a case the nuisance would be ‘of a comparatively trifling character’.[123] The second is that the judgment of the plurality in Bamford was given by Williams J, and none of the other judges in the case agreed with Bramwell B. The third is that Lord Leggatt hugely overstates the extent to which Bramwell B’s ‘test’ (as he called it) has been approved and applied. Apart from the Southwark LBC v Tanner case–to which I will turn shortly–the only other relatively recent decision at the highest level in which this passage has been cited with approval is Cambridge Water Co Ltd v Eastern Counties Leather plc.[124] But Cambridge Water was a case on the rule in Rylands v Fletcher, and besides Bramwell B’s emphasis on ordinary use in nuisance was grist to Lord Goff’s mill in that case, since he was engaged in a merger of nuisance with the Rylands rule, where the ordinariness of the defendant’s use is indeed central.[125] It is telling that the relevant passage from Cambridge Water was sidelined in the later nuisance case of Barr v Biffa Waste Services Ltd,[126] where Carnwath LJ pointed out that Lord Goff had not been ‘seeking to redefine the ordinary law of nuisance’, but was merely setting the scene for his discussion of the Rylands rule.[127] And the fourth point is that none of the leading tort textbooks cite Bamford for the proposition that the ordinariness of the defendant’s use is relevant to nuisance, and nor do specialist texts on nuisance by Richard Buckley[128] and John Murphy.[129] There was also no mention of common and ordinary use in the restatement in Barr of ‘conventional principles of the law of nuisance’ by Carnwath LJ, a specialist in planning and environmental law.[130]
Apart from Bamford v Turnley, Lord Leggatt cites only two cases for the proposition that the ordinariness of the defendant’s use is centrally important to nuisance. One is Ball v Ray,[131] which is simply an orthodox application of the locality principle, involving the use of a house in a residential street as a stable for horses. The other is Southwark LBC v Tanner.[132] The claimant in that case had rented a flat in a converted house owned by the defendant council. When the conversion work was done, sound insulation had not been installed, and as a result the noise generated by the residents of the flat above was excessive. The House of Lords held that no action lay in these circumstances, since the ordinary use of residential premises was not actionable in nuisance. However, it is important to note that their lordships’ analysis was heavily influenced by two policy factors.[133] The first was the long-standing rule that there is no implied warranty on the part of a landlord that the demised premises are fit for human habitation, let alone soundproof. Their lordships were clearly reluctant to allow tenants to circumvent this principle by suing in tort. And the second such consideration was the practical effect of imposing liability, which would be to divert scarce local authority resources into soundproofing, and away from more urgent housing improvements. Most importantly, however, in Southwark the House of Lords limited the defence of ordinary use to residential premises. That limitation is important for two reasons. First, if their lordships had considered that the limitation applied across the board, it is surprising that they did not say so. And secondly, the limitation makes the Southwark principle much easier to apply than the broader Fearn principle, since while it is relatively easy to identify ‘ordinary’ use in the case of residential premises, it is much more difficult to do so in the case of land generally.
Overall, then, there was very little authority for turning the defendant’s ‘common and ordinary use’ into a de facto defence to a nuisance claim, and indeed there are prominent cases, such as Miller v Jackson,[134] where a common and ordinary use (in that instance a village cricket ground) did generate nuisance liability, even though it was seemingly ‘conveniently done’.[135] It is true that there are other examples of judges in nuisance cases resting their decision on the ordinariness of the defendant’s use,[136] but these are relatively isolated, and, before Fearn, would generally have been regarded as erroneous.[137] Unfortunately, yesterday’s mistake is now (it seems) today’s orthodoxy.
E. Ordinariness of the Defendant’s Use: Criticisms
Quite apart from the lack of authority for turning common and ordinary use into a de facto defence to a nuisance claim, this aspect of Fearn is simply an undesirable development in English nuisance law, which other common law jurisdictions would be well advised not to follow.[138] The most obvious problem with this approach is that it upsets the balance of the nuisance enquiry, a point made by several commentators on Fearn. According to Jeevan Hariharan, for example, the focus in Fearn on the common and ordinary use of land ‘is likely to generate difficulties because [it] over-simplifies the complex balance between competing interests required in a nuisance claim’.[139] Similarly, James Lee says that making common and ordinary use ‘the be all and end all’ is problematic because it ‘presents a balancing exercise that is imbalanced’.[140] And Dan Priel makes the same objection to Allan Beever’s theory of private nuisance, which rests liability on whether the claimant’s or defendant’s land use is the more ‘fundamental’:
[C]ourts have insisted that the finding of a nuisance is a contextual, fact-rich, determination dependent on a long list of considerations … Though these factors can be stated in the abstract, they manifest themselves very differently in different cases and so taking them into account rails against any attempt to conclusively prioritise certain activities as more fundamental than others.[141]
As Lord Sales said in Fearn, the majority’s focus on the ordinariness of the defendant’s use elevates one factor ‘to unjustified prominence’,[142] and thereby threatens to ‘seriously distort the tort’.[143]
A second problem with the majority’s focus on the ordinariness of the defendant’s use is that it will generate high levels of uncertainty, since the concept of a ‘common and ordinary use’ is hopelessly vague. The first difficulty is defining what the ‘use’ is for these purposes, as this can be done at very different levels of generality, and which level is chosen may affect the outcome.[144] One thing that does seem clear from Fearn is that the ordinariness of the use must be assessed by reference to the locality.[145] So let us then assume a mixed area, with a combination of commercial, industrial and residential uses. And suppose now that the defendant’s use is a nightclub. If it is the only nightclub in the area, then ‘operating a nightclub’ might not be a common and ordinary use in that locality. But suppose there are also some bars and arcades in the vicinity. Could the defendant not argue that the use is ‘operating an entertainment venue’ and that that use is common and ordinary? And faced with the choice of the two characterisations of the use, how does the court decide which one to adopt?
Even if the court can decide on a suitable definition of the use, it will still need to determine whether it is ‘common and ordinary’. But as the courts have often pointed out, ‘ordinary’ use of land is an inherently vague concept.[146] Presumably, very unusual uses will not qualify,[147] but what of, say, a chip shop or a Chinese takeaway in a predominantly residential area? Again, by what criteria does the court decide if these are ‘common and ordinary’? Are figures on the numbers of such establishments in the UK admissible? And if so, how many do there need to be for the use to be ‘common and ordinary’? Ten thousand? Five? Maybe just hundreds? Adapting the words of Roderick Bagshaw in a review of Beever’s book, for a test of common and ordinary use to work in practice, the courts will have ‘to be able to reach relatively stable judgments’ as to how claimants and defendants are ‘using’ land, and whether their uses are ‘ordinary’.[148] It seems to me unlikely that they will be able to do this,[149] and the majority judgment in Fearn is likely to be of little assistance to them in this regard.
A third difficulty with the focus on common and ordinary use is that there is no normative reason to privilege common uses of land over more unusual uses,[150] unless the latter are more disruptive than the former. The justification that Lord Leggatt gives for doing so is a principle of ‘reciprocity’[151] and the usual vague references to ‘give and take’, but, like so much of the majority’s judgment, this begs the question. After all, a rule that one should not create interferences with the use and enjoyment of others’ land that they cannot reasonably be expected to tolerate is arguably more consistent with principles of ‘reciprocity’ and ‘give and take’ than a rule that privileges ordinary uses, since the former takes account of the practical effect of the defendant’s use on the claimant’s land.[152] By contrast, focusing on the ordinariness of the defendant’s use has the effect of subjugating the usability of the claimant’s land (the interest that private nuisance protects) to a defendant-focused criterion which apparently looks only to the numbers of persons engaged in a given activity.[153]
A fourth problem (albeit closely connected to the third) is that the focus on common and ordinary use rests on shaky intellectual foundations. This aspect of the majority’s reasoning was clearly influenced by the work of Allan Beever,[154] but Beever’s account of nuisance----which privileges more ‘fundamental’ uses of land over less ‘fundamental’ ones----is a rather thin one, which, like Lord Leggatt’s, rests on two key misconceptions. The first misconception is that the only alternative to the favoured approach is to rest nuisance liability on the unreasonableness of the defendant’s conduct.[155] In truth, however, the previous orthodoxy focused not on the unreasonableness of the defendant’s conduct, but on the unreasonableness of the interference with the use and enjoyment of the claimant’s land, which is (pace Beever) a perfectly good principle around which to organise the law.[156] And the second misconception, which Beever shares with legal economists such as Ronald Coase,[157] is that the central normative concern of private nuisance law is with the resolution of conflicts between competing uses of land,[158] when the better view is that its central normative concern is with the protection of the abstract usability of the claimant’s property.[159]
One final difficulty with the focus on the ordinariness of the defendant’s use is that it seems to reflect an excessively conservative approach to land use, which discourages innovative activities, and curtails the liberty to turn land to new uses. As Lord Sales says, this threatens to stultify ‘the vibrancy of modern life’[160] and ‘conflicts with the general policy of the law that a landowner should be free to use its land as it wishes’.[161]
VI. CONCLUSION
Some appellate court decisions are unfortunate because they lead to the wrong outcome. Others are unfortunate because although they lead to the right outcome in the case in question, they are likely to lead to the wrong outcome in later cases. I am not convinced that Fearn is unfortunate for either of these two reasons. The decision in the case itself was probably correct, and I suspect that this is why Lord Leggatt’s judgment, for all its flaws, garnered majority support. Nor am I convinced that Fearn is likely to result in incorrect outcomes being arrived at in future nuisance cases (though this possibility cannot be ruled out). There is, however, a third reason why an appellate court decision may be unfortunate, which is that it will complicate litigation in the field in question, and militate against settlement of claims. This, I think, is the real problem with Fearn. After all, Lord Leggatt did not seem to believe that any of the (very many) nuisance cases that he cited had been wrongly decided. He simply explained the results of those cases by reference to a set of governing principles some of which had not hitherto been regarded as such. As a result, while there is much to welcome in the case, it is likely to cause unnecessary complexity and uncertainty going forward.[162]
The form that this complexity will take is predictable enough. It can readily be assumed that defendants in nuisance cases will henceforth routinely argue that the use of their land that is causing the interference is a common and ordinary one, which is being undertaken with due consideration for the interests of their neighbours. Where the court considers that the interference is not a nuisance, the easiest path to this conclusion will be either to hold that the interference is insubstantial, or to accept the defendant’s submission on ordinary use, with this concept being manipulated to bring about the desired outcome. Conversely, where the court believes that the interference is a nuisance, it will simply hold that the interference is substantial, and then reject the defendant’s submission, either on the ground that the use is not ordinary, or on the ground that, while the use is ordinary, it is not being undertaken with due consideration, with these concepts again being manipulated to arrive at the wished-for result.[163] This kind of judicial manipulation seems inevitable when, by unbalancing the nuisance enquiry, the analysis of the Fearn majority requires such manipulation if a sensible outcome is to be achieved, while simultaneously resting on concepts (such as ‘ordinary use’) which are so nebulous as to enable the courts to indulge in such manipulation with relative ease.
Having said that, the judgment of Lord Burrows in the subsequent Jalla decision suggests that ultimately the disruption caused by Fearn may not be so great.[164] It is, after all, only one decision amongst a vast body of authority on nuisance stretching back centuries, and with time the lower courts will doubtless downgrade its importance and emphasise more orthodox approaches to the tort of private nuisance. If and when that happens, Fearn will cease to be viewed as a landmark and will instead come to be regarded as the decision of secondary significance which I suspect it really is.
Unless and until, that is, the case achieves landmark status, and comes to be analysed as such in retrospect, as in the Landmark Cases series published by Hart.
[2004] UKHL 15, [2004] 1 WLR 1057. In this case, the House of Lords held that a common law duty of care cannot be imposed on a public authority simply by virtue of the fact that the authority has a relevant statutory duty or power, but must instead be founded on the application of ordinary private law principles. The fact that this seminal decision was not even reported in the Appeal Cases is remarkable.
[1991] 1 AC 398 (HL).
[1992] 1 AC 310 (HL).
[2023] UKSC 4, [2024] AC 1.
The analysis is intended to be reasonably comprehensive, but I do not deal with all aspects of the decision. In particular, I do not address what their lordships say about planning permission and nuisance (see Fearn (n 5) [109]–[110], [201]), nor Lord Leggatt’s remarks regarding remedies (see Fearn (n 5) [127]–[129]). I also do not address the relationship between Fearn and privacy, which seems to me to be rather overblown in some of the commentary on the case. In a sense the facts of Fearn were of course concerned with the claimants’ privacy, but the gist of their complaint was not the interference with their personal privacy but (as always in nuisance) the impact of the defendant’s activity on the use and enjoyment of their apartments.
For references to articles in leading newspapers, see Jeevan Hariharan, ‘The View from the Top: Visual Intrusion as Nuisance in Fearn v Tate Gallery’ (2024) 87 MLR 697, 698 fn 8. The most amusing media treatment is Giles Coren, ‘Live in a Glass House? You Can’t Cry Privacy’ The Times 3 February 2023.
[2023] UKSC 16, [2024] AC 595.
James Lee, ‘Different Views of Nuisance’ (2023) 139 LQR 535, 535. I am doubtful as to the truth of this claim, and I am fortified in my doubts by the latest, post-Fearn, edition of Andrew Tettenborn (ed), Clerk & Lindsell on Torts (24th edn, Sweet & Maxwell, 2023), which has largely blended Fearn into its existing structure of analysis.
Roderick Bagshaw, ‘Private Nuisance: The UK Supreme Court Takes a View’ (2023) 16 Journal of Tort Law 173, 191.
Fearn (n 5) [7], [114].
[1997] AC 655 (HL).
[2018] EWCA Civ 1514, [2019] QB 601.
Fearn (n 5) [23].
Donal Nolan, ‘The Essence of Private Nuisance’ in Ben McFarlane and Sinéad Agnew (eds), Modern Studies in Property Law vol 10 (Hart Publishing, 2019).
Fearn (n 5) [11].
[2014] UKSC 13, [2014] AC 822 [42]–[46]. In Fearn (n 5) [220]–[221] Lord Sales called in aid Lord Neuberger’s dictum in Lawrence when apparently rejecting the second aspect of the coming to the nuisance principle, which however remains good law until Sturges v Bridgman (1879) 11 Ch D 852 (Eng CA) is overruled (a point apparently lost on the judge in Jones v Ministry of Defence [2021] EWHC (QB) 2276).
The argument, which was accepted by Mann J at first instance, was that the right to respect for private life guaranteed by art 8 of the European Convention on Human Rights provided an additional reason for extending the tort of private nuisance to cases of visual intrusion, by way of the supposed ‘horizontal effect’ of the HRA 1998 in cases involving private parties. (The claimants had originally argued that the Tate was a ‘public authority’ for the purposes of the HRA 1998, but the argument was rejected at first instance and this aspect of Mann J’s decision was not contested on appeal.)
Fearn (n 5) [113]. See also Fearn (n 5) [206] (Lord Sales) (reliance on the HRA 1998 ‘unnecessary and unhelpful’).
See Donal Nolan, ‘Nuisance’ in David Hoffman (ed), The Impact of the UK Human Rights Act on Private Law (CUP, 2011) 188–91.
See in particular Fearn (n 5) [208], where Lord Sales questioned whether ‘[article] 8 imposes a positive obligation on a state to intervene in some way in a dispute between private parties of the kind which arises in this case’.
See, eg, Alastair Mullis and Ken Oliphant, Torts (4th edn, Palgrave Macmillan, 2011) 248–49; James Goudkamp and Donal Nolan, Winfield & Jolowicz on Tort (20th edn, Sweet & Maxwell, 2020) para 15-12. See further, Donal Nolan, ‘“A Tort Against Land”: Private Nuisance as a Property Tort’ in Donal Nolan and Andrew Robertson (eds), Rights and Private Law (Hart Publishing, 2012) 465-468.
Fearn (n 5) [17]. See also Fearn (n 5) [12] (‘[a]nything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in land is capable of being a nuisance’).
Fearn (n 5) [94].
A term coined by Bagshaw, ‘Private Nuisance’ (n 10) 176.
Fearn (n 5) [13].
Fearn (n 5) [177]–[178].
Victoria Ball, ‘The “Property” in [Tate] Modern Nuisance’ [2023] Conv 205, 210.
Roderick Bagshaw, ‘The Edges of Tort Law’s Rights’ in Nolan and Robertson (n 22) 418. Nicholas J McBride, ‘A Straightforward Case of Nuisance: A Note on Fearn v Tate Gallery [2023] UKSC 4’ (2023) University of Cambridge Faculty of Law Research Paper 14/2023 https://ssrn.com/abstract=4355995 (accessed 10 February 2025) 6 provides a possible explanation for the limitation in Kantian terms, though he does not endorse it.
See Christopher Essert, Property Law in the Society of Equals (OUP, 2024) 105.
See Hariharan (n 7) 10.
See, eg, J Lyons & Sons v Wilkins [1899] 1 Ch 255 (Eng CA); Hubbard v Pitt [1976] QB 142 (Eng CA).
Thompson-Schwab v Costaki [1956] 1 All ER 652 (Eng CA); Laws v Florinplace Ltd [1981] 1 All ER 659 (Ch D).
Birmingham Development Co Ltd v Tyler [2008] EWCA Civ 859. Adherents of the ‘physical condition’ heresy seek to derive support from the decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 (HCA) that it was no nuisance for the defendants to broadcast live commentary on the races at the plaintiffs’ racecourse (which they observed from a platform on neighbouring land). But the explanation for that decision is that there was no interference with the use and enjoyment of the racecourse, but only with the profitability of the business carried on there, and that nuisance protects against the former but not the latter. See Nolan, ‘Essence of Private Nuisance’ (n 15) 75.
Hunter v Canary Wharf Ltd [1997] AC 655 (HL).
Bradford Corpn v Pickles [1897] AC 587 (HL).
WN Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale Law Journal 16, 33.
Fearn (n 5) [36].
See, eg, Webb v Bird (1862) 13 CBNS 841, 143 ER 332 (no action lay for the building of a schoolhouse that blocked the current of air which had previously helped to work the claimant’s windmill).
See Hunter (n 12) 685 (Lord Goff), 709 (Lord Hoffmann). See also 3 Bl Comm 217 (‘every man may do what he pleases upon the upright or perpendicular of his own soil’); Ernest J Weinrib, The Idea of Private Law (Harvard UP, 1995) 194.
Fearn (n 5) [77].
[1984] 1 NZLR 525 (NZHC).
Consider also a building constructed in such a way as to generate extreme levels of noise in windy conditions; a building so unstable that it threatens to collapse onto the claimant’s land, rendering part of that land unusable (Birmingham Development Co (n 35)); or a building whose gutters direct rainwater onto the claimant’s land: see Bagshaw, ‘Private Nuisance’ (n 10) 180.
Bradford Corpn (n 37).
Water Resources Act 1991, s 48A.
Perhaps the answer is a ‘liberty to abstract’ similar to the ‘liberty to build’.
Fearn (n 5) [37].
See text to n 96 below.
cf US Restatement, Second, Torts (1977) § 829, illustration 1 (liability for spite fence). Much depends, however, on whether we can differentiate between the use and the way the defendant exercises it. For example, if, in a building case, the ordinary use is deemed to be ‘building anything at all for whatever reason on your land’, then the construction of the spite fence is itself an ordinary use and there is no scope for arguing that it was not ‘conveniently done’. (Note in any case that the previous English law on views may not have been as definitive as was sometimes suggested: see Ben Pontin, ‘A Room With a View in English Nuisance Law: Exploring Modernisation Hidden Within the “Textbook Tradition”’ (2018) 38 LS 627.)
This is not an irrelevant consideration. In routine cases involving noise, smells, etc, there is unlikely to be any alternative remedy apart from a statutory nuisance procedure that is parasitical on the common law concept of nuisance. However, extreme visual intrusion will usually constitute harassment: see, eg, Fairhurst v Woodard (Oxford CC, 12 October 2021) (cited by Hariharan (n 7) 10). And in cases where there is no remedy in harassment, there is likely to have been a planning failure (as there was in Fearn), which raises the question of the extent to which the law of nuisance should operate as a backstop when the planning system fails: see David Howarth, ‘Nuisance, Planning and Human Rights: Throwing Away the Emergency Parachute’ [2020] CLJ 394.
Donal Nolan, ‘Nuisance and Privacy’ (2021) 137 LQR 1.
See also Lee (n 9) 537–38.
cf Fearn (n 5) [108] (Lord Leggatt), [200] (Lord Sales).
It may not be possible to tell, for example, whether someone in a nearby apartment block is looking into your flat, or your neighbour’s.
There are also powerful cultural factors in play. Consider, for example, the tradition in the Netherlands of not having curtains in one’s home. Although there are various explanations for this phenomenon, it would at least suggest that in that country there is less concern about visual intrusion than in, say, the UK.
A limit imposed by Lord Sales ([179]) which seems eminently sensible. See also at Fearn (n 5) [197] (‘residential property’).
Fearn (n 5) [107].
As suggested by Lord Leggatt, who said that it was ‘likely to be rare’ for visual intrusion to be serious enough to constitute a nuisance: Fearn (n 5) [103].
Fearn (n 5) [20].
Fearn (n 5) [158]. See also Fearn (n 5) [165] (‘[l]iability turns on the issue of reasonableness as between the two parties’), [211] (‘the governing principle is that the respective user of each [party] should be reasonable’), [240] (‘the whole law of nuisance is shot through with the need for assessments of reasonableness’).
See Fearn (n 5) [120].
Fearn (n 5) [121].
See, eg, Jones (n 17) [63] (public interest in training military pilots relevant when determining whether the resultant noise was a nuisance).
See text to n 103 below.
This would also tally with the position in negligence, where the fact that the defendant’s risky activity is socially beneficial counts in favour of it being reasonable: see Winfield & Jolowicz (n 22) para 6-022.
Fearn (n 5) [29], [31].
By contrast, Lord Sales refused to distinguish for this purpose between ‘the design of buildings’ and ‘other uses made of land’: Fearn (n 5) [250].
Fearn (n 5) [68].
See Nolan, ‘A Tort Against Land’ (n 22) 470–72.
Strangely, Lord Leggatt linked his conclusion on this issue with the ‘liberty to build’ idea (Fearn (n 5) [69]), but this seems to confuse what in Hohfeldian terms is a privilege (the freedom to build) with a claim right (the ability to sue for damage to what has been built).
It seems that the German courts have no difficulty with the idea, for example: see BGHZ 175, 253-265 [23]. This is not to say that the current configuration of the claimant’s land is irrelevant to the nuisance enquiry. Far from it. Clearly whether noise is a nuisance may depend on whether the claimant’s property is a factory or a house. My difficulty is with the idea that every aspect of the current configuration of the land is necessarily afforded equal protection by the law of nuisance.
See, eg, Cremidas v Fenton 111 NE 855 (Mass 1916). As Lord Leggatt pointed out, there are no English authorities endorsing the extension of the objective principle to buildings, but the courts seem to have been sympathetic to the idea in Grosvenor Hotel Co v Hamilton [1894] QB 836 (Eng CA) 840 (Lindley LJ) (‘[i]f the case were not between lessor and lessee that [ie, the application of the objective principle to buildings] might be so’); and Hoare & Co v McAlpine [1923] 1 Ch 167, 175 (Astbury J) (‘in some circumstances this [ie, the application of the objective principle to buildings] may be accurate’).
A house built in such a way as to channel any noise or odour emanating from neighbouring property into the living areas?
For the sake of argument, let us assume that, unlike existing forms of privacy film, this product works at night as well as during the day, and that the planning issues supposedly arising out of any use of such film by the Fearn claimants did not exist.
See *Bank of New Zealand *(n 43).
Fearn (n 5) [83]. This was reflective of a more general tendency on Lord Leggatt’s part to confuse the question of factors relevant to the liability in nuisance enquiry with ‘defences’ to a nuisance claim. At [67], for example, his lordship referred to a supposed argument that the sensitivity of the claimant’s building should be regarded as giving rise to a ‘defence’ to a nuisance claim, even though this was not what the argument was at all.
It goes without saying that, where there is a nuisance, the claimant is not required to remedy the defendant’s wrong by foregoing the right to enjoy their property to the full. Hence an occupier need not keep their windows shut to keep out noises or smells (Webster v Lord Advocate [1984] SLT 13 (OH) 15), nor hide behind shutters to avoid stray balls from the cricket ground next door (Miller (n 134) 985). But in Fearn the Tate’s argument was merely that in deciding whether there was a nuisance in the first place the possibility of self-help should at least be considered. The extent of Lord Leggatt’s confusion on this point is shown by the inapposite analogy he drew with a defendant to a trespass claim arguing that the claimant should have built a fence to keep him out: see *Fearn *(n 5) [83].
See Fearn (n 5) [194] (‘the principle of reasonable reciprocity and compromise … has to take account of reasonable measures of self-protection which may be available’), [214]–[216], [273]. As his lordship emphasised, the salience of possible self-help measures may depend on the nature of the alleged nuisance.
See, eg, Bagshaw, ‘Private Nuisance’ (n 10) 190; Lee (n 9) 240.
Fearn (n 5) [24].
(1889) 41 Ch D 88 (Eng CA).
[1902] AC 381 (PC).
See, eg, McKinnon Industries v William Wallace Walker [1951] 3 DLR 577 (PC Canada) (growing rare orchids); Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468 (KBD) (running a silver fox farm).
Fearn (n 5) [25]. Bagshaw, ‘Private Nuisance’ (n 10) 182–84, while acknowledging the ambiguity, seems to come down in favour of an interpretation of the majority judgment as not making ordinary use a condition of claiming in nuisance, but merely the ‘means by which the law sets the level at which interference becomes actionable’ (emphasis in original). Lord Sales in Fearn apparently favours the ‘condition’ interpretation ([229], [242]), but then it presumably suited him to make the majority’s analysis appear as implausible as possible.
Allan Beever, The Law of Private Nuisance (Hart Publishing, 2013). Beever seems to believe that the tort of private nuisance protects a seemingly endless series of rights to use property in specific ordinary ways, such as a ‘right to store chattels’. But in truth, like other nominate torts, it protects (or instantiates) only one right, in this case the right to the usability of one’s land. For criticism of this aspect of Beever’s thesis, see Dan Priel, ‘Land Use Priorities and the Law of Nuisance’ (2015) 39 Melb U L Rev 346, 366. See also Iain Field, ‘Uncommon and Unordinary: An Australian Perspective on the Fearn Decision’ (2024) 5 Journal of Commonwealth Law 187, 196-201.
See Nolan, ‘Essence of Private Nuisance’ (n 15).
Bryant v Lefever (1879) 4 CPD 172 (Eng CA) 176.
There may be an exception to this in some acquired rights cases, where the right that has been acquired, and hence which is protected by the tort of nuisance, is relatively specific (eg, a right of way, or a right to take game from another’s land).
Robinson (n 82) 94 (Cotton LJ). See also ibid (‘the ordinary enjoyment of life, or the ordinary use of property…’).
Carr-Saunders v Dick McNeil Associates [1986] 1 WLR 922 (Ch D) 28 (Millett J). See also Moore v Hall (1878) 3 QBD 178, 182 (Cockburn CJ).
See text to n 145.
This was clearly Lord Sales’s view at any rate: see Fearn (n 5) [235].
I am not aware of any express authority on the issue, but it seems to be implicit in the idea of ‘abnormal’ sensitivity.
Fearn (n 5) [27].
Fearn (n 5) [28].
Fearn (n 5) [62].
Fearn (n 5) [75].
This seems to be the view of Ball (n 28) 211, who argues that ‘[t]his new articulation of nuisance makes “common and ordinary use” the whole test’ (emphasis in original).
See Hunt Leather Pty Ltd v Transport for NSW [2023] NSWSC 840, where the court rejected the plaintiffs’ ‘rather simple’ argument (clearly based on Fearn) that, because the defendants’ use was not common and ordinary, the plaintiffs need show only that the interference with their land was substantial. Instead the court required the plaintiffs to establish that the interference was ‘substantial and unreasonable’.
‘[T]he proper angle of approach to a case of alleged nuisance is rather from the standpoint of the victim of the loss or inconvenience than from the standpoint of the alleged offender’: Watt v Jamieson 1954 SC 56 (OH) 57–58 (Lord President Cooper).
‘The gist of nuisance is the unreasonable effect of the defendant’s conduct on the plaintiff’s land’: Stephen Todd et al, Todd on Torts (9th edn, Thomson Reuters New Zealand, 2023) 594–95 (emphasis in original).
See Rushmer v Polsue & Alfieri Ltd [1906] 1 Ch 234 (Eng CA) 249; Hoare (n 73) 175; Kennaway v Thompson [1981] QB 88 (Eng CA) 94; Barr (n 126) [72], [74]; Lawrence (n 17) [179]; Fearn (n 5) [244]; Tony Weir, An Introduction to Tort Law (2nd edn, OUP, 2006) 160; Todd on Torts (n 102) 582, 596.
(1860) 3 B & S 62, 79; 122 ER 25, 31 (Ex).
Fearn (n 5) [232].
Hollywood Silver Fox Farm (n 84).
McBride, ‘Straightforward Case of Nuisance’ (n 30) 9. See also Fearn (n 5) [229].
Jalla (n 8). Since Beever’s account of nuisance (Beever (n 86)) rests on a comparison of the claimant’s use of land with the defendant’s use of land, this forces him to conclude that there can be no nuisance if the conduct of the defendant that causes the problem does not amount to a ‘use of land’. However, as one reviewer observed, this is ‘one of his least persuasive conclusions’ (RA Buckley, ‘Book Review’ [2014] CLJ 174, 176). In any case, it is not the law, as Lord Burrows makes clear in Jalla (n 8) [2] (see also Winfield & Jolowicz (n 22) para 15-042 and authorities there cited).
The supposition to the contrary arises from the misconception that private nuisance is concerned with conflicts between neighbours: see, eg, Fearn (n 5) [18] (Lord Leggatt). For a sustained critique of this misconception, see Nicholas J McBride, ‘Conceptual and Contextual Categories in Private Nuisance and Private Law’ (2024) 5 Journal of Commonwealth Law 133.
Jalla (n 8) [2].
Fearn (n 5) [166], [233], [237]. See also Hariharan (n 7) 11.
See Bamford (n 104) 83, 32–33, where Bramwell B says that there must be some principle ‘on which such cases must be excepted’, ‘such cases’ being those where there is a nuisance, but it is caused by a common and ordinary use.
[2001] 1 AC 1 (HL) 20 (‘the defence’).
Winfield & Jolowicz (n 22) para 15-58. See also para 15-061 (consent defence).
This is the position with regard to the defence of statutory authority, where the defendant bears the burden of establishing both that their activity is authorised by the legislature, and that they have acted with all reasonable regard and care for the interests of others. See Winfield and Jolowicz (n 22) para 15-056.
Harris v Carnegie’s Pty Ltd [1917] VLR 95 (Sup Ct Vic); Clift v Welsh Office [1999] 1 WLR 796 (Eng CA); Video London Sound Studios Ltd v Asticus (GMS) Ltd (QBD, 6 March 2001).
This seems to be the import of Lord Sales’ analysis ([233]) where, however, he employs his preferred language of reasonableness, rather than speaking of ‘undue interference’.
Bamford (n 104).
Fearn (n 5) [30]. See also [27] (‘regularly cited, approved and applied, including at the highest level’).
Bamford (n 104) 83, 33.
See, eg, Fearn (n 5) [27], [35].
I am grateful to John Murphy for pointing out this distinction.
Bamford (n 104) 84, 33.
[1994] 2 AC 264 (HL) 299. Although the relevant passage of Lord Goff’s speech was itself cited with approval by Lord Neuberger in Lawrence (n 17) [5] (and see also [76]).
For a critique of the merger of the two causes of action, see Donal Nolan, ‘The Distinctiveness of Rylands v Fletcher’ (2005) 121 LQR 421, where I warned that for various reasons the merger would be bad for private nuisance. One of those reasons was that it would foster a mistaken belief that the ordinariness of the defendant’s use is a central consideration in nuisance cases (see 436–37). Unfortunately, Fearn proves my point.
[2012] EWCA Civ 312, [2013] QB 455.
Barr (n 126) [65].
Richard Buckley, The Law of Nuisance (2nd edn, Butterworths, 1996).
John Murphy, The Law of Nuisance (OUP, 2010).
See Barr (n 126) [36]. Lord Leggatt’s claim in Fearn (n 5) [33] that Carnwath LJ said that the test of ‘reasonable user’ in nuisance ‘“should be judged by the well-settled tests” formulated by Bramwell B’ is incorrect. In the paragraph of Carnwath LJ’s judgment from which that quotation derives, the test he cites is Weir’s claimant-sided ‘reasonable tolerability’ test (see Barr (n 126) [72]).
(1873) LR 8 Ch App 467 (Eng CA).
Southwark (n 113).
It is also fair to say that their treatment of the authorities was somewhat brusque. For example, in Sampson v Hodson-Pressinger [1981] 3 All ER 710 (Eng CA), the Court of Appeal had held that the ordinary use of a roof terrace was an actionable nuisance, since (due to the flawed construction of the terrace) it interfered with the reasonable enjoyment of the flat below. In his speech in Southwark, Lord Millett did not even mention Sampson, while Lord Hoffmann’s attempt to distinguish the case on the ground that those using the terrace had failed to show reasonable consideration for those living underneath it was unconvincing (see [2001] 1 AC 1, 16). Two other decisions that are apparently inconsistent with Southwark are Toff v McDowell (1993) 25 HLR 650 (Ch D), and Stannard v Charles Pitcher Ltd [2002] BLR 441 (QBD).
[1977] QB 966 (Eng CA).
I am grateful to Iain Field for this point. Another decision that is difficult to reconcile with this aspect of Fearn is Reinhardt v Mentasti (1889) 42 Ch D 685 (Ch D), where the placing of a stove near a party wall rendered the adjacent wine cellar of the claimant unusable. Kekewich J held that the stove was a nuisance even though it was ‘of an ordinary character and well constructed’ and the defendants had ‘taken divers precautions to prevent its being obnoxious’ (687). He was unimpressed by the submission that the passage from Bramwell B’s judgment in Bamford (n 104) on which the Fearn majority placed such weight compelled a contrary conclusion, observing (688) that:
Such passages must of course be read in connection with the circumstances of the particular case under consideration, and what is even more important, they must be read as not intentionally departing from, or rather, in absence of proof to the contrary, as intentionally adhering to those principles and rules of law which a Judge must be credited with bearing in mind, although he does not think it worthwhile to repeat or even expressly to refer to them.
I cite some examples in Nolan, ‘The Distinctiveness of Rylands v Fletcher’ (n 125) 436–37, namely Graham and Graham v ReChem International Ltd [1996] Env LR 158 (QBD) [162]; Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] 2 Lloyd’s Rep 533 (QBD) 545; Dennis v Ministry of Defence [2003] EWHC 793 (QB) [34]; and Arscott v The Coal Authority [2004] EWCA Civ 892 [27]ff. It is also an established rule in the law relating to water that a riparian owner can take water from the stream for ordinary purposes connected with their riparian land (Miner v Gilmour (1858) 12 Moo PCC 131, 156, 14 ER 861, 890), whereas if it is taken for other purposes it must be restored to the stream.
See, eg, Hirose Electrical UK Ltd v Peak Ingredients Ltd [2011] EWCA Civ 987, [2011] Env LR 34 [17] (Mummery LJ): ‘The deputy judge correctly pointed out that, as a matter of law, the ordinary use of the premises could amount to an actionable nuisance’.
Unsurprisingly, there are already indications that it will not be followed elsewhere. In Hunt Leather (n 100), Cavanagh J of the New South Wales Supreme Court said ([651]) that on the common and ordinary use issue the observations of Lord Sales in Fearn were ‘more consistent with the law as it has developed in Australia’. On appeal, the New South Wales Court of Appeal agreed with Cavanagh J on this point: see Transport for NSW v Hunt Leather Pty Ltd [2024] NSWCA 227 [118]–[126].
Hariharan (n 7) 3.
Lee (n 9) 539. See also Ball (n 28) 211–12. The same observation has been made about Beever’s approach to nuisance, which seems to have influenced Lord Leggatt: see Priel (n 86) 373.
Priel (n 86) 373.
Fearn (n 5) [245].
Fearn (n 5) [227].
This is also a problem with the theory of nuisance put forward by Beever, who characterises the respective ‘uses’ of the parties in the examples he gives in a way which is both unstable and contestable, and who gives no plausible explanation of how we are to determine what description is appropriate, saying only that ‘the appropriate description … is the one that most accurately captures their dispute’ (Beever (n 86) 45). For criticism of this aspect of Beever’s analysis, see Priel (n 86) 366 (‘a thoroughly unstable and very easily manipulable test’); Buckley, ‘Book Review’ (n 108) 175.
See, eg, Fearn (n 5) [234]ff (Lord Sales). It is not entirely clear, however, precisely how the nature of the locality will feed into the notion of ‘common and ordinary use’. For a more sustained exploration of the relationship between locality and ordinary use, see Field (n 86).
See, eg, Cambridge Water (n 124) 308 (Lord Goff) (obviously ‘lacking in precision’); Transco plc v Stockport MBC [2003] UKHL 6, [2004] 2 AC 1 [37] (Lord Hoffmann) (‘rather vague’).
But then what is a ‘very unusual’ use? The majority in Fearn thought that it was axiomatic that the viewing gallery in that case was not an ordinary use (see Fearn (n 5) [50]), but more than one person I have spoken to has queried this assumption. After all, there are quite a few viewing galleries in central London.
Bagshaw, ‘Book Review’ (2014) 130 LQR 521, 523.
The discussion of the issue in Hunt Leather (n 100) [653]–[657] illustrates the difficulties, though happily Cavanagh J had already decided that little rested on it. In that case (which involved noise and other interference caused by the construction of Sydney Light Rail) the defendant argued that what it characterised as ‘carrying out construction activity on a road’ was a common and ordinary use. Cavanagh J agreed that that was, but he characterised the use as the construction of a light rail network, which was not common and ordinary but ‘exceptional’. The fact that nuisance litigation in the UK will now be blighted by this kind of thing is deeply depressing.
And over what we might call ‘non-uses’, namely cases where the defendant is not using their land at all, but a public space, as in Hall v Beckenham Corpn [1949] 1 KB 716 (KBD). Assuming that such non-uses can be actionable in nuisance in the first place (see n 108), it seems odd that the same activity (eg, the flying of model aircraft in Hall) could attract the ‘defence’ of common and ordinary use if engaged in by the defendant in the grounds of his stately home, but not if he did exactly the same thing in a public park. See McBride, ‘Conceptual and Contextual Categories’ (n 109).
See Fearn (n 5) [34]–[35].
Hence Lord Sales also calls in aid principles of ‘reciprocity’ and ‘give and take’ in support of his rival conception of nuisance law as based on ‘objective unreasonableness’.
See also Bagshaw, ‘Private Nuisance’ (n 10) 186.
Beever (n 86). Lord Leggatt was clearly also influenced by the analysis of nuisance in Weinrib (n 41) 190–96. Weinrib’s brief discussion of nuisance in that book is open to criticisms similar to those made here of Beever’s work. In particular, like Beever’s, Weinrib’s analysis rests on a comparison of the particular uses of the claimant and defendant----with the more ‘general’ or ‘ordinary’ use being favoured----as opposed to focusing on the abstract usability of the claimant’s land.
See Beever (n 86) 9–13 (criticising what Beever calls the ‘conventional view’).
See Nolan, ‘A Tort Against Land’ (n 22) 485.
Ronald Coase, ‘The Problem of Social Cost’ (1960) 3 Journal of Law & Economics 1. See also Guido Calabresi and A Douglas Melamed, ‘Property Rules, Liability Rules, and Inalienability: One View of the Cathedral’ (1972) 85 Harv L Rev 1089.
See Beever (n 86) 25 (‘the law of nuisance is the common law’s method for prioritising property rights so that conflicts between the uses of land can be settled’).
See Nolan, ‘The Essence of Private Nuisance’ (n 15). See also text to nn 87-91 above.
Fearn (n 5) [225].
Fearn (n 5) [231].
This is also the view of Lee (n 9) 541.
A good example of manipulation of the ‘conveniently done’ test to achieve a desired result is afforded by Lord Hoffmann’s discussion of the Sampson decision in Southwark: see n 133. See also Ray v Windrush Riverside Properties Ltd [2022] EWHC 2210 (TCC) [191].
See also Davies v Bridgend County Borough Council [2024] UKSC 15, [2025] AC 434 [76], where Lord Burrows summarises the gist of nuisance in terms that seem entirely unaffected by Fearn.